Tuesday, January 25, 2011

Amended Ohio Rules of Practice & Procedure

Initially published for comment last Oct. 4, proposed amendments concern changes to Ohio's rules of appellate procedure, civil procedure, criminal procedure, juvenile procedure, and rules of evidence have been revised by the Commission on the Rules of Practice and Procedure and approved for filing by the Supreme Court.

That done, the Court and commission this morning announced input received during a second round of public commentary will be accepted until Feb. 23. The Court can revise and file the amendments with the General Assembly prior to May 1. The amendments would take effect on July 1 unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.

Comments to these rules should be submitted in writing to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215 or via e-mail to j.cline@sc.ohio.gov

Text to the proposed amendments are ( Here )

Ohio Supreme Court Interpreters

The Ohio Supreme Court is adopting a new Rule of Superintendence for interpreters which would require courts to hire certified foreign or sign language interpreters to ensure the "meaningful participation" of deaf and limited English proficient individuals in court proceedings. Public comment on the new rule are now being entertained, but need to be received by Feb. 23 and should be addressed to:

Bruno Romero, Interpreter Services Program manager
Supreme Court of Ohio
65 S. Front St., Sixth Floor
Columbus, Ohio 43215 or e-mailed to Bruno.Romero@sc.ohio.gov

The Court's Interpreter Services Program provides technical assistance, training, and learning opportunities for the courts, interpreters, and other important stakeholders on the proper role and use of interpreters in legal proceedings. The Interpreter Services Program also assists courts in the state of Ohio in developing policies, procedures, standards, and mechanisms to provide linguistic minorities and deaf and hard of hearing communities equal access to the courts.

Certification of court interpreters began last year when rules regarding certification of foreign language and sign language interpreters used by Ohio courts were adopted. ( Here )

Friday, January 21, 2011

Hamilton County,Ohio Juvenile Court Judge Dispute

"Lawyers on both sides of the disputed election for Hamilton County, Ohio Juvenile Court judge took their case to one of the highest courts in the nation Thursday.," the Cincinnati Enquirer, this morning said. "Their arguments boiled down to a single question: How imperfect can an election be before it violates the U.S. Constitution?"

"On one side, lawyers for the county and Republican John Williams said election results should not be held up indefinitely by investigations into every potential error made at polling places," the article says. "'Mistakes happen. Elections aren't perfect,' said Dave Stevenson, the attorney for the county's board of elections. 'Mistakes just don't rise to a constitutional level.' On the other side, lawyers for Democrat Tracie Hunter, who trails Williams by 23 votes, said the government must investigate any mistake that could disenfranchise voters through no fault of their own."

The court action, which began last November over the counting of some 850 provisional ballots from Hamilton County's attempted juvenile court judge election, may, in fact, now stand a chance of heading all the way to the U.S. Supreme Court, according to some.

Filed pretty much concurrently in the Ohio Supreme Court and Ohio's federal Southern District, the case, as the Enquirer phrased it Tuesday morning, now has the Sixth Circuit Court of Appeals entering uncharted territory with implications that go beyond a single judgeship in Hamilton County. "The facts of this case are complex," the appeals judges wrote. "The appeals present questions of law regarding the interplay of federal and state law." ( Here )

Ohio State University's Election Law @ Moritz, in its Jan. 14 post, noted that while the issue is "not a high profile race, it could create a high profile precedent…. (appearing) to have the potential of forcing the U.S. Supreme Court itself, or at least one of its Justices (indeed, its newest member, Justice Elena Kagan), to weigh in on how the precedent of Bush v. Gore applies to other elections besides the one in which it arose (which was, of course, the 2000 presidential election)."

Thursday, January 20, 2011

How secure are mobile devices?

The arrest Tuesday of two men who succeeded in hacking into AT&T’s iPad 3G protocol last summer, obtaining and presumablydistributing the e-mail addresses of some 114,000 iPad owners, is renewing questions about the vulnerability of mobil internet devices.

"The men," a New York Times article this morning said, "who are part of a group known as Goatse Security, gained national attention last June when they discovered a security loophole on AT&T's web site that allowed them to gain access to e-mail addresses and corresponding iPad identification numbers." That group, the Times article said, "originally maintained in an open letter to AT&T back in June, that it exposed the security vulnerability on the company's site to alert it to the problem. The flaw allowed anyone to discover e-mail addresses by submitting potential iPad identification numbers to the site."

An MSNBC.com article back in June said "AT&T, which has exclusive U.S. rights to carry the iPad and the popular iPhone, acknowledged the security breach but said it had corrected the flaw and that only e-mail addresses were exposed to hackers who identified a security weakness.." This morning's Times article quotes Richard Wang, manager of the security firm SophosLabs as saying there was "criticism to be leveled at both sides" in the case… "AT&T's site wasn't sufficiently secure," he said. "The company may have felt pressure to take strong action, considering the data leak involved a prominent business partner, but in general the security risk was low…the Goatse Security group could have handled matters in a way that would have let it avoid prosecution."

Gawker.com had an additional post about the original breach, while SiliconValley.com and the Wall Street Journal have current updates.

Goggle Scholar improvements

The quest for low-cost – or better yet – free – legal research options is right up there on every attorney and researcher's list. Last Tuesday Law.com’s "Legal Blog Watch" noted improvements that had been made to Google's "Scholar"

"When Google Scholar was introduced back in late 2009," Blog Watch said, "we noted that 'there's no ignoring a 1,000-pound gorilla. Google's entry into the area of legal research is definitely a game changer for the entire legal industry.' Google Scholar's impact on Westlaw and LexisNexis, however, was no doubt limited by the fact that its search functionality was nowhere near as sophisticated… But last week Google Scholar announced (via WisBlawg) that it has taken another step forward, enhancing its 'Advanced Search' capability to allow users to select a specific federal jurisdiction or state for their search."

From Scholar's homepage, click on the "Advanced Search" option just to the right of the search bar; then scroll down to the bottom of the page to "Legal Opinions and Journals" under the "Collection" heading. Search criteria selections can now be made according to “federal” or “state” opinions, or via "all legal opinions & journals." Click on the "Select specific courts to search" link for your court.

Friday, January 14, 2011

Ohio's legislative priorities

“Jobs, abortion, estate taxes and health care top the agenda of Ohio House leaders,” the Cincinnati Enquirer said earlier this week of the opening salvo of bill introductions at the commencement of Ohio’s 129th. General Assembly. "House leaders traditionally unveil their top-priority legislation on the first day of the session," the article said. "No. 1: House Bill 1, authorizing Gov. John Kasich to create JobsOhio, a nonprofit economic development corporation, privatizing the Ohio Department of Development. The proposed legislation says the new private corporation 'would perform state economic development functions … pursuant to a contract with Department of Development.'"

Some of the more notable bills introduced include:

HB 3, repealing Ohio's estate tax. According to a recent Forbes article, thirteen states – including Ohio -- and Washington, D.C., have estate taxes only. Typically, these taxes exempt $1 million or less per estate and carry a top rate of 16%. Six states – including Indiana, Kentucky & Tennessee -- levy only an inheritance tax, with the rate depending on the relationship of the heir to the deceased and the taxes kicking in, in some cases, on the first dollar of bequest. New Jersey and Maryland levy both estate and inheritance taxes. Republicans said the tax puts Ohio at a disadvantage because 30 other states have no such tax, according to a Cleveland Plain Dealer article. The opposing view there is that eliminating the tax would be a blow to municipalities, which receive about 80 percent of estate tax revenue. That amounted to about $231 million in the last fiscal year.

HB 11, if passed, would prohibit state departments and agencies from implementing or enforcing a provision of the federal Patient Protection and Affordable Care Act unless that department or agency submits a report to the general assembly containing the information described by the bill, and, the Revised Code specifically authorizes that department or agency to implement or enforce such a provision.

Concurrent here is newly elected Ohio Attorney General Mike DeWine’s having contacted Florida’s newly-elected AG Pam Bondi seeking to have Ohio added in with the 20 other states challenging the constitutionality of the federal Health Care Reform Act (Press Release and originating complaint )

HB 12 would establish new requirements concerning services, providers, third-party liability, and reports for Ohio's Medicaid program, including each Medicaid provider selected by the department of job and family services giving to the family services bond with surety, to the satisfaction of the department, for the faithful adherence by the provider to the requirements of Section 5111.03 of the Revised Code.

HB 13 would require the Director of Job and Family Services to seek federal approval to create a premium assistance component of the Medicaid program.

HB 17 would authorize a $2,400 income tax withholding credit for an employer that hires and employs a previously unemployed individual.

Tuesday, January 11, 2011

Supreme Court's Armed Criminal Career Act case

"The Supreme Court has ruled that driving under the influence is not a 'violent felony' for considerations under the federal Armed Criminal Career Act," a National Law Journal article last week began – "and neither are failure to report to prison or simple battery." There've been seven ACCA decisions in the last five years, the article says, but it doesn't appear that the flow of cases in the lower court pipeline will ease up any time soon. The question now is whether using a vehicle to flee from police after being ordered to stop is inclusionary? -- and the case is Sykes v. United States, which is being heard tomorrow.

The Armed Criminal Career Act was passed by Congress in 1984, amending the Omnibus Crime Control and Safe Streets Act of 1968, establishing a mandatory sentence of 15 years and a fine of not more than $25,000 for "armed career criminals." It was amended two years later in 1986.

Sykes in his Petition for certiorari said his 7th. Circuit appeal , last March, was in direct conflict with the 11th. Circuit’s U.S. v. Harrison in 2009 and 9th. Circuit’s U.S. v. Jennings in 2008. The 7th. Circuit followed its earlier holding in United States v. Spells in 2008. (Brief in opposition here )

Sykes also opts that his 7th Circuit decision conflicted with the 8th. Circuit’s 2009 decision in United States v. Tyler, "which held that fleeing a police officer in a motor vehicle is not a 'crime of violence' under the United States Sentencing Guidelines, U.S.S.G. § 4B1.1, [ and that ] the Court in Tyler recognized that the 'definitions of 'violent felony' [18 U.S.C. § 924(e)1 and 'crime of violence' [U.S.S.G. § 4Bl.1] are virtually identical." Id. at 725 n3.

Monday, January 10, 2011

Proposed Ohio Supreme Court Traffic Rules

The Ohio Supreme Court this morning announced that it will be entertaining public comment on proposed amendments to the Ohio Traffic Rules clarifying the authority of traffic violations bureaus (Rule 13) and expanding the required experience of magistrates (Rule 14).

The Court's announcement states "the proposed changes to Rule 13 – which were recommended by the Commission on the Rules of Practice and Procedure – state that traffic offenses that could result in jail time cannot now be processed by a traffic violations bureau."

Changes to the magistrate rule (Rule 14) "specify that magistrates need to 'have been engaged in the practice of law for at least four years and be in good standing with the Supreme Court of Ohio at the time of appointment'" The current requirement is only that a magistrate "shall be an attorney admitted to practice in Ohio."

Comments on the proposed amendments should be submitted in writing not later than Tuesday, February 8, 2011 and include your full name and mailing address if submitted by e-mail.
Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 South Front Street, 7th Floor
Columbus, Ohio 43215-3431, or j.cline@sc.ohio.gov

Text of the Proposed Amendments.